P L D 1953 Lahore 1 (PLP)

KAYANI, J.‑--This petition arises out of a decision given by a Division Bench of this Court in a suit entitled Mirza Akbar Ali v. Mirza Iftikhar Ali and reported in (P L D 1951 Lah. 368). It relates to the wakf of Wazir Khan Mosque in Lahore created by Nawab Wazir Khan in 1641. The last mutawalli was Mirza Sir Zaffar Ali who died on the 20th September, 1942. In 1936 he nominated his eldest son Mirza Iftikhar Ali, principal defendant in the main suit, as mutawalli of the wakf and Mirza Iftikhar Ali has continued to be mutawalli since the death of Sir Zafar Ali. The plaintiff Mirza Akbar Ali stated in the plaint that immediately on the death of Sir War Ali, the members of his family had assembled and, in pursuance of the provisions of the wakf deed and the usage observed by the family, had elected the plaintiff as mutawalli but that the defendant, on obtaining knowledge of this election, had, with the aid of certain supporters, proclaimed himself mutawalli alleging that his father had appointed him as such in his lifetime. The plaintiff repudiated this appointment and asked for a declara tion that he himself had been properly appointed, with an inciden tal relief requiring the defendants to render account of the wakf properties. On the issues before them, the decision of the High Court Bench, of which I was a member, was as follows:‑ (1) that by the terms of the wakf deed the right of mutawal li-ship vested in the entire family; (2) that by established practice the mutawalli was approved of by the entire family (3) that Sir War All did not make a death‑bed appointment but that even if he had made one, it would have had only a temporary effect. Such an appointment is merely the last service that the dying mutawalli can perform towards the wakf and takes effect only if no proper appointment is made. It does not affect the power of the proper authorities, whether they be the Court or the members of the family, to substitute it by a proper appointment; and (4) that the plaintiff had not been elected a mutawalli fn pursuance of a properly convened meeting following an announce ment to the entire family. By reason of the last finding we agreed with the trial Court that the suit should be dismissed. Interpreting this decision to mean, and I think this is the correct view, that it was open to the parties to hold a fresh election for the appoint ment of a mutawalli, the plaintiff or his partisans announced a date for such an election. The opposite party, apparently to defeat the object of this announcement, fixed an earlier date for election. Thereupon Mirza Bashir Ali, a partisan of the plaintiff, filed two petitions in the Court of the District Judge, one for regulating the election in his capacity as Qazi, the other for the appointment of an interim receiver. The opposite party contended that the District Judge had no jurisdiction to entertain these petitions, and having heard the parties on the first petition, the District Judge came to the conclusion that he possessed jurisdiction. It is from this decision that the present petition has been filed. Mr. Yaqub Ali argued for the petitioners that where a Civil Court possessed jurisdiction to do certain things, that jurisdiction had been expressly conferred on it by statute. The District Judge had power, for instance, to entertain a suit under section 92 of the Code of Civil Procedure. Under section 3 of the Religious Trusts Act of 1920 he had power to entertain an application requiring a trustee to furnish information regarding the trust property and to furnish accounts. Under section 3 of the Mussalman Wakf Act of 1923, a statement of the income and expenses of wakf property was to be furnished annually to the District Judge. In a similar fashion he had power conferred on him under the Bengal Wakf Act of 1934, the Mussalman Wakf (Bombay Amendment) Act of 1934, and the U. P. Muslim Wakfs Act of 1936. Mr. Yaqub Ali also referred to Halsbury's Laws of England, Volume IX (1909 Edition) where it is stated that no matter is beyond the jurisdiction of the superior Court unless it is expressly shown to be so and that no matter is within the jurisdiction of inferior Courts unless it is expressly placed within their jurisdiction. On the statement of law In Halsbury I pointed out that, at any rate, the High Court would have jurisdiction to entertain such a petition, but Mr. Yaqub Ali argued that there was specific provision for a case of this kind in section 92 of the Code and that if that section was not held to apply, resort could be had to an ordinary civil suit. It is not disputed that in old days all civil disputes of whatever character were settled by the Qazi and the Civil Court has now taken the place of the Qazi, but it was contended that the procedure of the Civil Courts is regulated by the Code of Civil Procedure and by special Acts and that a Court becomes seized of jurisdiction only when it is approach‑.d in the particular manner laid down by the law. The first question to be decided, therefore, is whether the matter covered by the present application fall under section 92 of tile Code. If it does, then the application is clearly incompetent by reason of the provision in subsection (2) of that section, which lays clown that "No suit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provision of that subsection." Section 92 requires for its application that either (1) there should be an alleged breach of an express or constructive trust created for public purposes of a charitable or religious nature, or (2) it should have become necessary to obtain the direction of the Court for the administration of any such trust. The reliefs which can be claimed in such a suit are stated in clauses (a) to (h) thus‑ (a) removing any trustees; (b) appointing a new trustee; (c) vesting any property in a trustee; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the crust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. Now it is obvious that when the petitioner asks the Court to arrange for the holding of a free election, he is neither alleging a breach of the trust not seeking the direction of the Court for the administration of the trust. Even, therefore, if the ultimate effect of the election be the removal of the present mutawalli, since these two fundamental conditions are not fulfilled, a suit under section 92 will not lie. But what the petitioner does ask the Court is not to remove the mutawalli or to appoint a new mutawalli. That prayer formed the subject‑matter of the main suit between the parties which has already been decided and it is in pursuance of that decision that the petitioner wants an election to be held. The District Judge in regulating the election will neither himself remove the mutawalli nor appoint a fresh mutawalli. As regards the general relief which can be claimed under clause (h), it can be stated on good authority that even that clause is not applicable. In Abdul Rahim v. Syed Abu Muhammad, (A I R (1928) P C 16) there was a suit by the heirs of the former mutawalli against the present mutawalli for a declaration that certain property administered by the wakf was the secular property of the former mutawalli, and decreeing the suit the Court passed a preliminary decree for partition. Subsequently a suit under section 92 was brought by seven Mohammedans to secure the removal of the mutawalli. The heirs of the former mutawalli were also impleaded as defendants and it was claimed that the property in respect of which they had obtained a partition decree also belonged to the wakf. This suit resulted in a compromise decree by which only a part of the property was declared as wakf. Thereafter another suit, not under section 92, was instituted by five Muslims against the heirs of the former mutawalli and the plaintiffs in the former suit under section 92 for a declaration that the partition decree and the compromise decree were not binding and that the entire property be declared as wakf property. The defendants contended that the suit should have been brought under section 92, C. P. C. The Privy Council, however, held that the case was not covered by clauses (a) to (g) of section 92 and that the words "further or other relied" in clause (h) must, "on general principles of construction, be taken to mean a relief of the same nature as clauses (a) to (g)". A relief against third parties could not be intended to be included in these words. Next the question is whether an ordinary civil suit can lie. Under section 9 of the Code the Court have jurisdiction to try all suits of a civil nature excepting suits of which their cogniz ance is either expressly or impliedly barred. In the explanation to this section it is made clear that a suit in which a right to property or to an office is contested is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. This gives us an idea as to the character of a suit which can be called a suit of a civil nature. It is generally a suit in which a right to property or to an office is contested. A right to do certain things is also a civil right and may be the subject‑matter of a suit. If the petitioner in this case wanted to establish his right to hold an election, he could go to a Civil Court for a declaration. That right, however, according to him, has been established by the decision of the High Court. A suit for the regulation of an election cannot, in my opinion, be termed a suit of a civil nature. The essence of a suit is that there are certain matters or controversy between the parties and the Court is called upon to b adjudicate upon the rights of the parties in respect of those matters. Mr. Yaqub Ali suggested that in the present case the petitioner could institute a suit "for an injunction restraining the defendants from holding a separate meeting for an election." But such a suit has every chance of being dismissed because there is a right in the opposite party also to hold an election and if that party also institutes a similar suit, the Court would find it difficult to give a decision one way or the other. All that the Court car do in such a case would be to agree more or less arbitrarily upon some place and some tune for holding the election, but that would be far from an adjudication of civil rights. There is, in my opinion, no provision for a suit of this nature. It will be noticed that section 9 does not say that the jurisdiction of Courts shall be confined to suits only. Now under 1 section 24 of the Punjab Courts Act the Court of the District Judge is deemed to be the District Court or Principal Civil Court of original jurisdiction in the district. Mr. Yaqub Ali contended that since under section 25 "the Court of the District Judge shall have jurisdiction in original suits without limit as regards the value that jurisdiction was confined to original civil suits. This is clearly not the intention of the section. The intention is not to confine its jurisdiction but to extend it to all suits "without limit as regards the value." This does not, however, mean that he has jurisdiction only in respect of suits, for section 24, while declaring the Court of the District Judge to be the principal Civil Court of original jurisdiction in the district, leaves room for the exercise of original jurisdiction in all its aspects, whether for the purposes of a suit or for applications. Then there is the Punjab Laws Act of 1872 by section 5 of which the rule of decision in almost all civil matters, is to be the Muhammadan Law or the Hindu Law or custom as the case may be. Section 6, however, provides that in cases not otherwise specially provided for "the judge shall decide according to justice equity and good conscience." Now it is true that section 6, following as it does section 5, tries to meet cases for which there is no provision in Muhammadan Law, Hindu Law or custom and that it does not particularly contemplate the Code of Civil Procedure, but if in a given case we find no provision in the Code of Civil Procedure and no prohibition) either, we could, I think in such a case decide according to justice equity and good conscience and hold that since there is no remedy for the present contingency in a suit and since a Qazi could P give directions in such a case, and the Civil Court has taken the place of the Qazi, the District Judge who presides over the prin cipal Court of original jurisdiction, should be the proper person to give such a direction. I have also found the language of section 151 of the Code sufficiently attractive. It says, so far as is relevant to our purpose, that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as G may be necessary for the ends of justice. This means that the Court has inherent power for doing justice to meet a case for which the Code has made no special provision. In that view of the case even an ordinary Civil Court could entertain a mis cellaneous application of the present nature, but since through established practice the District Judge has been regarded as a substitute for the Qazi, it is proper that such application should be made to the District Judge only. The practice to which I have referred appears to have had its origin in Shama Churn Roy v. Abdul Kabeer ((1896) 3 C W N 158) decided by Ameer Ali and Pratt, JJ. Their Lordships had before them a suit to recover possession of certain wakf property from a trespasser sold by the mutawalli without the sanction of the Court. The suit was dismissed on another ground, but their Lordships made the follow ing observation : "We must state, however, that we do not agree with the Subordinate Judge that leave should have been obtained under section 539, C. P. C." (corresponding in the present Code to section 92). "The proceeding under that section has reference to wholly different matters, by the Civil Court of superior jurisdiction in the district is vested, generally speaking, with the powers exercised by the Qazi under the Muhammadan regime, Before an alienation of a trust property can be made by the trustee the sanction of the Qazi, in other words the Judge, is essential." This case was followed in 1908 by Woodroffe, J. In the matter of Woozatunessa Bibee (I L R (1908) 36 Cal. 21). An application had been made in that case by the mutawalli to the High Court under the Trustees' Act and the Trustees and Magistrates' Powers Act, both of 1866, for sanction to grant leases of wake properties. The application was sanctioned, "not under the Acts, but on the authority of Shama Churn Roy v. Abdul Kabeer which lays down that this Court has jurisdiction under Muhammadan Law to authorise dealings with wakf property" and his Lordship pointed out that "a similar order was made by Mr. Justice Stephen on the 2nd July 1906". A year later, Mookerjee and Vincent, JJ. in Nimai Chand Addya v. Golam Hussain (I L R 1909/1910 37 Cal. 179) carried this principle further by holding that even a Subordinate Judge could act as a "Cadi" and sanction a lease where necessity was established even after the lease had been actually granted. The learned Judge put to themselves the question as to which officer should under the British system or administration of justice be regarded as qualified to discharge the duty of the Cadi. They pointed out that the Judge in Shama Churn Roy's case and in that of Woozatunnessa Bibee (Supra) had held that this power could be exercised by the superior Court in the district and by the High Court in Calcutta proper, but observed that there was no reason way a Subordinate Judge should not be able to do so. In Mohammad Ismail v. Ahmad Moolla (A I R (1916) P C 132) Mr. Ameer Ali, who delivered the judgment, observed that in a case of wakf created for specific individuals, the Oazi whose place in the British Indian System is taken by the Civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder," and that with respect public trusts, of which a mosque is an example, the Qazi's discretion is very wide. This observation was made in a suit under section 539, C. P. C. for the appointment of trustees and the settlement of a scheme of man agement respecting a mosque. There was no occasion in that case for stating a Civil Court can entertain miscellaneous applica tions also but it was undoubtedly made clear that the Civil Court is a substitute for the Qazi of Mohammadan times. There is only one reported case of Calcutta where the view prevailing in that Court was not accepted In re: Halima Khatun (I L R (1910) 37 Cal. 870) decided by Pugh, J. This was an application to obtain sanction to the sale of wakf land. The learned Judge, holding that there was no jurisdiction, and that it was true that Woodroffe, J. had given sanction in such a case, but that "I was informed by counsel that Fletcher, J. on a subsequent similar application declined to make an order . . . . on the ground that there being on statutory authority authorising such an application to be made to the Court on petition, it could only be done by mean of a suit . . ‑ ‑ . It is purely a matter of procedure, because there is no question that a Judge of this Court does exercise the functions of a Qazi in such matters. That is clearly laid down in the case of Nima! Chand Addya v. Golam Hussein* . . . Although provision is made for the application of Mohammadan Law in certain matters, there if no provision by which Mohammadan procedure is introduced into this Court." Pagh, J. went on to say that the Court can deal with a matter only when brought before it by means of a suit, but he did not say what the nature of such a suit should be. A suit to obtain the sanction of the Court to the sale of wakf property could not be much of a suit for determining civil rights. In the next case from Calcutta, Atimannessa Bibi v. Abdul Subhan (A I R (1916) 43 Cal. 467) Mookherjee and Beachcraft, JJ. assumed that even in Hahma Khatun's case(Supra) it had been held that the officer, who had taken place of Qazi was the District Judge and relied on the earlier Calcutta cases. This observation, however, was of a casual nature as the case before the learned Judges was a suit for a declaration that the plaintiff was entitled to be Mutawalli of the certain mosque. In Mohiuddin Chowdhry v. Aminuddin Chowdhry (A I R 1924 Cal. 441) San derson C. J. and Richardson, J. were dealing with a case in which the mutawalli of a Muhammadan endowment had resigned and the office was vacant. The deed of wakf provided for the appoint ment as Mutawalli of a devout Muslim by a "competent Court" on the nomination of five devout and respectable Muslims of the village. Five such Muslims had nominated one person and five others had nominated another person. Both parties made applica tions to the District Judge who considered the claims of the rivals and appointed one of them as Mutawalli. It was held that the District Judge had, in such a matter as this, the powers of a Qazi and was a "competent Court" within the meaning of the deed. The learned Judges thought that the proceeding was more of an administrative than judicial character, but they gave no final opinion on this particular point. They repelled the conten tion that a suit under section 92, C. P. C., should be instituted for this purpose as their was neither a breach of the trust nor had any necessity arisen for obtaining the direction of the Court in rela tion to the administration of the wakf. In Habibar Rahman v. Saidannesa Bibi (A I R (1924) Cal. 473) where an appli cation was made by the mutawalli for permission to grant leases of wakf property and such permission had been granted by the District Judge, it was pointed out that it had been the uniform practice in the Presidency of Calcutta for a quarter of a century to regard the District Judge as having jurisdiction to authorise deal ing with wakf property and that Halima Khatun's case (Supra) stood by itself. Until a new procedure was introduced by competent authority, the Court should not deviate from the established practice. In Abdul Alim Abed v. Mst. Abir Jan Bibi (A I R (1928) Cal. 363) Suhrawardy and Graham. JJ. reiterated this view. In an application for the ap pointment of mutawalli on the ground that the present mutawalli, although lawfully appointed, had sold some property as secular property and thus abandoned his position as Mutawalli, the learned Judges observed that as this was a case in which a breach of the trust was alleged, !t fell within section 92, C. P. C., but that if an allegation of breach had not been made, the District Judge could have made the appointment by a mere application. It was further observed that "the practice of invoking the power of a District Judge as a Qazi in connection with matters of public and religious trust under the Mohammadan Law has become general and it cannot be now doubted that, in a proper case, the Judge should exercise the powers which he does possess." The Allahabad High Court took the same view in Askari Hussain v. Chunni Lal (A I R (1929) All. 849) where Mukerji and Iqbal Ahmad, JJ. held that since a Mutawalli could not transfer property without the sanction of the Qazi to exercise civil powers, in the present day he has only to go to a Civil Court to obtain such sanction and the District Judge being the principal Court of original jurisdiction, application could properly be made to him. "This is the conclu sion at which we have arrived on a consideration of the principles involved in the case. As to authority, in numerous decided cases by the Calcutta High Court it has been held that in the mofussil, the District Judge, and in Calcutta proper, a Judge of the original side of the High Court are the officers who may be said to have taken the place of the Quzi of the days of old." It was further observed that eminent writers like Ameer Ali and Tayabji express the same opinion. In the Lahore High Court the first case of this kind brought to my notice is Elahi Bakhsh v. Muhammad Ghauny (A I R (1933) Lah. 27) decided by Bhide, J. In that case the District Judge had appointed a mutawalli under section 2 (c) of the Mussalman Wakf Act of 1923. It was held that this could not be done under the Act in question but that the District Judge had power without a suit under section 92 to appoint a mutawalli. Only he should have given notice to the existing mutawallis and for this purpose the case was remanded. Reliance was placed on Mohiuddin Chowdhry v. Aminuddin Chowdhry (Supra). In Mia Muhammad Yusuf v. Mia Muhammad Ayub (A I R (1938) Pat. 537) there was an application to the District Judge praying that the mutawalli may be called upon to produce the wakf accounts and that he may be removed from office. It was held that as this was a case for the removal of the mutawalli, it was covered by section 92, C. P. C., but that if merely the post had fallen vacant, the District Judge would have power to appoint a mutawalli, in making this latter observation the learned Judge followed the Calcutta view. With the exception of Halima Khatun's case, (Supra) no other case has been brought to my notice in which it has been held that the District Judge acting for the Qazi does not possess power to entertain miscellaneous applications in respect of wakfs and wakf properties. I respectfully follow the view of the Calcutta High Court but I adopt it not merely because the view has the sanction of established practice, but because in my opinion, there is no other remedy open and the Court has inherent power to pass any order which may be necessary for the ends of justice. The petition is, therefore, dismissed with costs. A. H. Petition dismissed.